University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 6-27-2014 Gregory Brunson vs. Safety Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov
Mailed On:6-27-2014 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY IN THE MATTER OF: Gregory (N1067 & N1075) Brunson Thirty-one thousand six hundred fiftynine ($31,659.00) in U.S. Currency Seized from: Gregory Brunson Date of Seizure: September 11, 2012 Claimant: Gregory Brunson DOCKET NO: 19.01-122242J DOS No: N1067 ORDER UPHOLDING CLAIM OF GREGORY BRUNSON This matter was heard in Memphis, Tennessee, on June 2, 2014, before Joyce Carter-Ball, Administrative Law Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety and Homeland Security. Joe Bartlett, Staff Attorney for the Department of Safety, represented the Seizing Agency. The Claimant was represented by Attorney Michael R. Working. This hearing was convened to consider the proposed forfeiture of the subject currency, pursuant to T.C.A. 53-11-201 et seq and 40-33-201 et seq. After a Forfeiture Warrant was issued, the Claimant filed a claim for the currency, and this hearing was scheduled to consider that claim. As a preliminary matter, the State challenged the Claimant s standing to file a claim. Upon full consideration of the pleadings, the evidence submitted and the parties arguments, it is determined that the Claimant does have legal standing to pursue the claim filed in this case. This decision is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Officer William Acred of the Memphis Police Dept., testified as a witness for the Department.
2. On September 10, 2012, detectives of OCU teams were conducting surveillance on Phillip Brunson, (Claimant s brother) on a drug trafficking investigation since July 2012. Detectives Acred and Overly received information that Phillip Brunson was selling large quantities of marijuana. 3. Detectives observed Phillip Brunson make three drug transactions, before following him to the Waterford Place Apartments. Prior to this, Mr. Brunson was observed coming and going from his apartment at 829 Merrywood Glen, driving a green Nissan Maxima and a Black Juguar. 4. Mr. Brunson was observed exiting the apartment carrying a black garbage bag, which he placed into the trunk of the Nissan Maxima. 5. Mr. Brunson left the apartment complex and was observed driving in an erratic manner at a high rate of speed, weaving in and out of traffic, and not wearing a seat belt. Detective Jordan activated blue lights and sirens and Mr. Brunson began to pull over, but then accelerated speeding into a residential area. Mr. Brunson exited the vehicle and ran, leaving the vehicle abandoned. 6. Later that evening, Detective Acred observed the Claimant go into the apartment at 829 Merrywood Glen #2, and less than two minutes later, Claimant left the apartment hurriedly, carrying something black. Detective Filsinger followed the Claimant in belief that he took evidence from the apartment. 7. Claimant pulled into the Exxon lot where he was identified. Claimant was carrying a handgun. Claimant advised detectives that he did not have any illegal drugs or anything of value inside of this vehicle. 8. Claimant refused to give consent to search his vehicle. The drug dog gave a positive alert on the driver s door area and the back door side. Detective Overly obtained the keys and unlocked the vehicle. 9. Detective Overly immediately noticed a black bag on the back seat floorboard containing a large quantity of US currency. Claimant stated that the money belonged to him, and that it was about $12,000 to $14,000. 10. Claimant admitted to being dishonest with the detectives, and that it was his brother s apartment (Phillip Brunson), not his mother s house he was leaving. 11. Detective Acred also observed the drug dog give a positive alert on the bag of US currency, and the currency to have an odor of marijuana present. 2
12. Detective Acred attempted to take a statement from the Claimant about the currency, however he invoked his Miranda Rights. 13. The Department alleges that the subject currency is profit from drug sales, and that the Claimant conspired with his brother to conceal it from law enforcement by moving it, and therefore the subject currency should be seized. 14. Claimant is a professional evictor - commercial and property. CONCLUSION OF LAW AND ANALYSIS 1. To prove legal standing, the Claimant must establish an ownership interest in the seized property that was acquired in good faith. TENN. CODE ANN. 53-11-201(f)(1). Without such an ownership interest, a party lacks standing to challenge the forfeiture. See Jones v. Greene, supra; U.S. v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497(6 th Circuit 1998). 2. The individual claiming an ownership interest in the property has the burden of proving the claimed ownership interest. Urquhart v. Dept. of Safety, 2008 WL 2019458 (Tenn.Ct.App.). 3. Tennessee Code Annotated 53-11-201 provides in relevant part as follows: (f)(1) Whenever, in any proceeding under this section, a claim is filed for any property seized, as provided in this section, by an owner or other person asserting the interest of the owner, the commissioner shall not allow the claim unless and until the claimant proves that the claimant: (A) Has an interest in the property, which the claimant acquired in good faith; and (B) Had at no time any knowledge or reason to believe that it was being or would be used in violation of the laws of the United States or of the state relating to narcotic drugs or marijuana. (emphasis added). 4. The Department has promulgated Rule 1340-2-2-.15 which provides is pertinent part as follows: (3) The claimant has the burden of proof as to standing, as to any motions or other pleadings advanced by the claimant, and as to any matter set forth in the Act whereby the burden of proof is placed on the claimant. Claimant s burden of proof at a contested case hearing includes proving the requisites of T.C.A. 53-11-201(f)(1) (excluding T.C.A. 53-11-201(f)(1)(B)) and any alleged exception from forfeiture. 3
5. Also relevant is Department Rule 1340-2-2-.16 (g) which provides: The administrative judge shall rule on a motion to strike a claim for lack of standing and a motion to de-pauperize a claimant before the contested case proceeds further. If the motion to strike is granted, then claimant s claim shall be dismissed and the property forfeited to the state. ANALYSIS The only issue for consideration is whether Claimant has shown that he has an interest in the seized currency, and that it was obtained in good faith. If he can make such a showing, then he has standing and is entitled to a hearing on the merits. At the hearing on the merits, the burden of proof is on the Department to show that the seized currency is subject to forfeiture. Claimant must prove that he has an interest in the currency, and that he acquired both in good faith. It is the State s position that the subject currency is profit from drug sales, and therefore Claimant is not entitled to a hearing on the merits, and the Seizing Agency gets to keep the currency by operation of law. This argument in effect pushes the burden of proof onto the Claimant. It would revise the seizure statute to allow law enforcement to seize one s property, then require the owner to prove it was not related to drug trafficking to have it returned. The Claimant testified that he is a professional evictor, commercial and property, and that he sometimes acquires large sums of money. He further testified that he deposited a check for $26,000.00, and that he took some of his money out of the bank and put it in a safe at his mother s house. He later took the money out of the safe because there was work being done on his mother s house. The State did not prove that the Claimant sold drugs, that the subject money was drug proceeds or that it was used to facilitate, manufacture or deliver marijuana. 4
1. It is concluded that the evidence does establish Claimant s asserted ownership interest in the seized currency, and that the Claimant is entitled to a hearing on the merits. 2. Accordingly, it is hereby determined that the Claimant does have legal standing to file or pursue his claim for the seized currency. IT IS SO ORDERED. This Order entered and effective this day of, 2014. Joyce Carter-Ball Administrative Law Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of 2014. J. Richard Collier, Director Administrative Procedures Division 5